Akin Gump’s Energy Regulation Team Authors Book Chapter on FERC Enforcement
Global Competition Review’s new book The Guide to Energy Market Manipulation includes a chapter written by David Applebaum, Akin Gump partner and co-head of the firm’s energy regulation, markets and enforcement practice, counsel Todd Brecher and senior counsel J. Porter Wiseman. The chapter, titled “FERC Practice and Procedure,” provides an overview of the key points to consider for subjects of market manipulation cases.
Applebaum, Brecher and Wiseman begin by listing some of the key sources of procedural guidance in enforcement cases. They then summarize the principal stages of a FERC enforcement market manipulation investigation, including fact-finding, when enforcement staff “obtains information through … data requests and testimony – and can seek information from both subjects and third parties,” as well as third-party discovery.
Once the fact-finding is completed, the authors write that enforcement staff will then make “a preliminary determination of whether a violation has occurred.” Notifying the subject of such a violation “can be done in writing, through a ‘preliminary findings’ letter, or orally.” If appropriate, enforcement staff will seek settlement authority from the commission.
The chapter then discusses some consequential—and even controversial—policies relevant to market manipulation investigations, such as the issuance of notices of alleged violations, access to transcripts, the timing and substance of Brady disclosures (which requires Enforcement staff to disclose exculpatory materials to investigation subjects) and the disclosure of trade data.
The book chapter also examines any likely policy changes for FERC enforcement policies in the coming months and years. Applebaum, Brecher and Wiseman write that some of those changes “will reflect the continued maturation of the agency’s enforcement program, some will reflect the newly constituted Commission taking a fresh look at enforcement policies, and some will result from federal court decisions.”
To read the chapter in its entirety, please click here.